Sabalza v. Salgado

• Decision Date: 07 June 2011
• Citation: 924 N.Y.S.2d 373,2011 N.Y. Slip Op. 04732,85 A.D.3d 436
• Parties: Maria SABALZA, Plaintiff–Respondent,v.William H. SALGADO, Defendant/Third–Party Plaintiff–Appellant,v.William Pager Esq., et al., Third–Party Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 436

924 N.Y.S.2d 373

2011 N.Y. Slip Op. 04732

Maria SABALZA, Plaintiff–Respondent,

v.William H. SALGADO, Defendant/Third–Party Plaintiff–Appellant,

v.William Pager Esq., et al., Third–Party Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

June 7, 2011.

Andrew Lavoott Bluestone, New York, for appellant.William Pager, Brooklyn, for Maria Sabalza, respondent.Steinberg & Cavaliere, LLP, White Plains (Steven A. Coploff of counsel), for William Pager Esq. and Law Offices of William Pager, respondents.SAXE, J.P., DeGRASSE, FREEDMAN, ABDUS–SALAAM, MANZANET–DANIELS, JJ.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered June 30, 2010, which denied defendant/third-party plaintiff's motion for summary judgment dismissing the complaint, and granted third-party defendants' motion to dismiss the third-party complaint pursuant to CPLR 3211(a)(1) and (7), unanimously affirmed, with costs.

Plaintiff alleges that, while grocery shopping at a local supermarket in 1997, she slipped and fell on water and a grape at a soda display, near the produce section. She retained the services of defendant attorney, and he commenced an action for personal injuries in 1998. On May 26, 2003, the action was dismissed based upon the failure of defendant to appear at a compliance conference. On or about May 5, 2004, defendant filed a motion to restore the case to the calendar, but that motion was denied, based upon defendant's failure to appear in support of the motion. On or about March 14, 2005, defendant filed a motion to renew his prior motion to restore plaintiff's action to the court calendar, and that motion was denied on the merits.

Plaintiff alleges that defendant misled her as to the status of her case, screened his calls to avoid speaking with her, and failed to appear for previously scheduled appointments. In August of 2005, plaintiff engaged the services of third-party defendants who, after executing a consent to change attorney in the underlying action, commenced this action for malpractice.

A plaintiff's burden of proof in a legal malpractice action is a heavy one ( Lindenman v. Kreitzer, 7 A.D.3d 30, 775 N.Y.S.2d 4 [2004] ). The plaintiff must first prove the hypothetical outcome of the underlying litigation and, then, the attorney's liability for malpractice in connection with that litigation ( id. at 34, 775 N.Y.S.2d 4; Nazario v. Fortunato & Fortunato, PLLC, 32 A.D.3d 692, 822 N.Y.S.2d 236 [2006] ).

However, a defendant seeking dismissal of a malpractice case against him has the movant's burden of making a prima facie showing of entitlement to summary judgment ( see Suppiah v. Kalish, 76 A.D.3d 829, 907 N.Y.S.2d 199 [2010] ). Where the motion is premised on an argument that the plaintiff could not succeed on her claim below, it is defendant's burden to demonstrate that the plaintiff would be unable to prove one of the essential elements of her claim ( see Velie v. Ellis Law, P.C., 48 A.D.3d 674, 854 N.Y.S.2d 137 [2008] ).

A defendant seeking summary judgment in a slip and fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition, nor had actual or constructive notice of its existence ( see Castillo v. New York City Tr. Auth., 69 A.D.3d 487, 891 N.Y.S.2d 645 [2010] ). A defendant cannot satisfy its burden merely by pointing out gaps in the plaintiff's case, and instead must submit evidence concerning when the area was last cleaned and inspected prior to the accident ( see Baptiste v. 1626 Meat Corp., 45 A.D.3d 259, 844 N.Y.S.2d 271 [2007]; Porco v. Marshalls Dept. Stores, 30 A.D.3d 284, 817 N.Y.S.2d 268 [2006]; compare with Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 856 N.Y.S.2d 573 [2008] ).

Defendant attorney failed to make a prima facie showing ( see Suppiah, 76 A.D.3d at 832, 907 N.Y.S.2d 199; Velie, 48 A.D.3d at 675, 854 N.Y.S.2d 137). He did not submit any evidence, documentary, testimonial or otherwise, concerning C–Town's maintenance...